This Note proposes that courts impose a limited legal obligation on employers to respond to reference inquiries when the employer is protected by a legal privilege. Part II explains the lack of a common-law duty to warn or protect third parties, and its relevance to the employment reference situations. In Parts III and IV, this Note explains the tort of defamation and its many defenses, including the qualified or conditional privilege available to employers in the employment reference setting. This Note contends that employers who refuse to provide references, despite the protection of their qualified immunity, essentially receive something for nothing. Part V explains the tort of negligent misrepresentation, and Part VI surveys case law on how negligent misrepresentation applies when employers selectively omit negative information from employment references. Part VII surveys some solutions to the reference dilemma posed by legal commentators.
The Note concludes that, while well intentioned, the proposals made by these commentators are insufficient. Part VIII argues that courts should impose an affirmative duty upon employers, based on a combination of the foreseeability of the harm to third parties and the existence of a qualified privilege. In applying the duty, courts should distinguish between physical (personal) harm and financial harm, with the duty being imposed to prevent only the former. . . .